In Harnett, questions about a grand jury’s decision

Nearly two dozen Harnett County residents met in April to decide whether deputy Nicholas Kehagias should be tried for murder for shooting a civilian to death after entering his home without permission.

In that room was a man who built his career studying how police use force and explain it afterward.

Jon Blum – a former police officer who spent part of his career training other officers for the state’s Justice Academy – was a member of the grand jury that decided to not indict Kehagias in the death of John Livingston.

Blum knew he would be stepping into a room to contemplate the fate of a fellow law enforcement officer, including discussion on a topic Blum knew much about. Blum said he did not consider stepping aside.

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“I am probably more critical of what the officers were testifying to than the (other) folks that were in the grand jury,” Blum said in an interview last week. “I get it. I would look at them and I’m putting them on a different level. I am expecting them to do what they’ve been trained to do.”

Blum owns and runs a company, Force Concepts, that contracts with police agencies to teach officers how to document and explain their use of force. He is also a Democratic candidate for the General Assembly, challenging Republican incumbent David Lewis to represent Harnett and Lee Counties.

It’s against the law for grand jurors to discuss their work, so it’s impossible to know much about the panel’s deliberations.

But a witness to Livingston’s death in November who testified to the grand jury, not bound by confidentiality restrictions, says Blum asked him questions about whether Livingston had used a Taser on Kehagias during the altercation that occurred inside Livingston’s home.

Questions and accusations have swirled in Harnett County since the grand jurors declined to bring criminal charges against Kehagias. Friends and family of Livingston immediately accused officials of rigging the process.

District Attorney Vernon Stewart had asked them to indict Kehagias for second-degree murder.

The way Stewart saw it, the moment Kehagias stepped into Livingston’s home, he was an intruder, not a deputy acting under the color of law. Kehagias had no warrants or permission to enter; the siblings he sought weren’t there and did not live at Livingston’s home.

Kehagias said he had the right to enter the home and arrest Livingston because Livingston assaulted a law enforcement officer when he shut the door on the boot Kehagias had placed on the threshold.

The News & Observer examined Livingston’s death and other incidents of potential misconduct in a four-part series, Deadly Force, last month. The U.S. Department of Justice is now investigating Livingston’s case and a number of other incidents involving the Harnett County Sheriff’s Office. The Department of Justice has the power to bring criminal civil rights charges against law enforcement officers.

Five hours, four witnesses

In North Carolina, grand juries are shrouded in secrecy. The grand jury is supposed to be the citizens’ check on the power of law enforcement and prosecutors, so no prosecutors are supposed to be in the room. Their charge: Is there really enough evidence to believe this person likely committed this crime?

Though they are charged with being skeptics, grand juries rarely are. Nearly all requests to indict are met. The same held true for this Harnett County grand jury – together for three months – before being asked to consider charging a deputy with a crime, court records show.

The grand jurors met for about five hours to consider Livingston’s death. The jurors were young and old, men and women, black and white. Twice, they sought technical advice from the superior court judge guiding the process. If 12 of them agreed there was probable cause to believe that Kehagias murdered Livingston, they would have approved charges against the deputy.

An agent with the State Bureau of Investigation spent hours explaining everything she learned about Kehagias’ actions. Three others – friends of Livingston’s who witnessed the shooting – also testified.

The N&O interviewed two of the eyewitnesses – Clayton Carroll and Bradley Timmerman – about the events of Nov. 15 before they testified before the grand jury. The newspaper spoke to them again afterward.

‘We were convicts’

Carroll said he tried to be hopeful when he walked into the grand jury room. He worried, though.

He was there as an eyewitness, a roommate, a friend. But he sat before them as a criminal. His wrists were cuffed, his legs shackled.

After Livingston’s death, Carroll violated the terms of probation he was on for breaking into a car and stealing a gun. He was sent to prison for three months; while he was there, he was summoned to Harnett County to testify to the grand jury.

His mother brought a suit and asked that he be allowed to change clothes. Stewart asked that his handcuffs be released. Prison officials would not allow it.

Though he said a few women wept while he talked about his friend dying, Carroll said he instantly felt as if the jurors had made up their minds about Livingston’s death.

“We were convicts. I was locked up; [Livingston] was fighting a cop. Maybe to them, it seemed like he deserved to be killed that night,” Carroll said in an interview last week.

Carroll said he was in and out in 15 minutes. One juror asked him a single question. A half-hour later, he was headed back to prison, wondering if the grand jurors cared that his friend was dead.

“I thought it might get blew up under the rug because he wasn’t a high-class person,” he said.

The men had gathered at Livingston and Carroll’s home drinking and watching football on the day of the shooting. Livingston and Timmerman worked together as house framers.

Timmerman recalled a similar feeling of unease before the jurors. He, too, was in and out in less than 15 minutes.

“It wasn’t too good of a crowd,” Timmerman said. “They looked at me like they couldn’t wait to be done.”

Timmerman later identified Blum through a photograph. He said Blum asked him a question: Did Livingston shoot Kehagias with the Taser?

Timmerman wondered why that mattered; he had hoped his friend would get control of the Taser. Timmerman said he had watched Kehagias brutalize Livingston for nearly 10 minutes – zapping him with the Taser repeatedly, beating him, pepper spraying him.

In an interview last week, Blum said a North Carolina court case is what he believes defines when officers can use force in the line of duty. That case establishes immunity for officers who have a reasonable need to use force for their safety and that of others.

Because the law prohibits him from discussing what went on in the grand jury’s deliberations, Blum declined to speak about any questions he asked or how he voted in the case. He said he is concerned about the allegations of excessive force involving several Harnett County sheriff’s deputies reported last month by The N&O. He believes the scrutiny of the sheriff’s office is warranted.

Blum said he did not know Kehagias and does not have financial ties to the Harnett County Sheriff’s Office. He was chosen at random to serve on the grand jury months before Livingston was killed. His one-yearterm expired a week ago.

No more action

After the grand jury declined to indict Kehagias, Stewart, the district attorney, said he didn’t understand the decision.

He said he had not spoken to the SBI agent who presented the agency’s findings to the grand jury. (A recent court decision will make the SBI’s written report public soon.)

Stewart said taking the case to the grand jury had “sucked the life out of him.”

Though the jury had the ability to ask him to submit an indictment for a lesser charge, such as manslaughter, jurors did not. Stewart could have asked them to consider lesser charges, but did not.

Stewart could have presented the case again; he could have simply asked SBI agents to arrest Kehagias. He has declined.

A grand jury is panel of citizens called upon to be a check on prosecutors improperly charging people with crimes.

At least once a month, at least 18 citizens selected for an extended jury service meet to determine whether police and prosecutors have enough evidence of a crime. If they do, the person is indicted and the charge sticks. If the police and witnesses don’t convince them, they refuse to indict. Twelve of the 18 must agree.

How are they chosen?

Members of the grand jury are simply called upon like any citizen to serve on a jury. The first to be selected and screened by the senior superior judge, however, are assigned to the grand jury, which convenes on an ongoing basis for six months or more.

Unlike the juries called for an actual trial, lawyers don’t have the opportunity to block someone’s participation on the grand jury. If the member thinks he has a conflict, he can ask to be excused. Failing that, the law has no explicit mechanism by which those chosen to serve on a grand jury are evaluated for suitability.

What is known about what happens inside the grand jury room?

Very little. The law says the entire deliberation must remain secret. Disclosing what happened there puts the members at risk of being found in contempt of court.

Witnesses who testify before the grand jury aren’t bound by confidentiality. Witnesses outside law enforcement, though, are rarely called to testify before a state grand jury.

Who runs the show?

Technically, the foreman of the grand jury, selected by the superior court judge, controls the proceedings.

Very little about the process is formalized. Witnesses who testified before the Harnett County grand jury said members of the grand jury could ask them questions, but they just started talking until someone interjected.

The district attorney or his representatives are not allowed in the room in a normal grand jury proceeding to avoid influencing the members.

What if there is a question or a problem?

There is nothing in the statute that explains what to do if someone in the grand jury room believes there is a problem with the way the case is being handled.

And jurors are often pressed to adhere to their duty to keep the proceedings confidential. While a superior court judge is on hand to guide the process as needed, nothing in the statute tells jurors to seek the judge’s counsel if problems arise in the grand jury room.

Source: North Carolina General Statutes on grand juries and materials compiled by experts at the North Carolina School of Government